Horowitz: GOP-appointed judges killing us on important issues, including control of Congress itself

When was the last time you heard of a Democrat-appointed judge sabotaging the left on a major issue of our time?

Republicans had control of the Senate when Anthony Kennedy retired from the Supreme Court. The Democrats were going to go nuclear against the prospect of nominating anyone who would move the court to the right. Republicans could therefore have chosen anyone, but instead Trump nominated Bret Kavanaugh, who is essentially Karl Rove in a robe, even though he wasn’t on the promised list of Trump’s choices. Democrats ironically went to war with him as if he were Clarence Thomas, but now Kavanaugh might have single-handedly given Democrats the House majority with his horrible decision to join the majority in Allen v. Milligan.

In June, Chief Justice Roberts and Justice Kavanaugh joined the three Democrat appointees to vitiate Alabama’s congressional map. In applying the Voting Rights Act to essentially create proportional black districts, they have made it a federal right for Democrats to maximize the black vote to squeeze out as many Democrat districts as possible. As we warned, this was not just limited to the circumstances of the original Alabama map, as Kavanaugh seemed to indicate in his concurrence, but will essentially void every map in the South, creating one or two more Democrat seats in most Southern states.

Shortly after the Milligan decision, the Supreme Court remanded a Louisiana case back to the Fifth Circuit, effectively paving the way for another mandated Democrat district in Louisiana. Now, a three-judge panel in Alabama has tossed out a second map drawn by the state, essentially asserting that the black vote is not utilized enough to create more guaranteed Democrat seats. That panel included another GOP judge, District Judge Anna M. Manasco, who was appointed by Trump. The court stripped the state legislature of its constitutional right to draw maps and has unilaterally appointed a special master to draw the districts instead.

“Based on the evidence before us, including testimony from the Legislators, we have no reason to believe that allowing the Legislature still another opportunity to draw yet another map will yield a map that includes an additional opportunity district,” the court said in its order. “Moreover, counsel for the State has informed the Court that, even if the Court were to grant the Legislature yet another opportunity to draw a map, it would be practically impossible for the Legislature to reconvene and do so in advance of the 2024 election cycle. Accordingly, the Special Master and cartographer are DIRECTED to commence work forthwith on a remedial map. Instructions shall follow by separate order.”

So there you have it! What Kavanaugh promised would be a modest ruling has essentially stripped states of the right to draw maps, four years after Kavanaugh and Roberts themselves wrote (in Rucho v. Common Cause), "Partisan gerrymandering claims present political questions beyond the reach of the federal courts."

Perforce, we have Republican judges who don’t believe in the supremacy of state legislators over redistricting so long as only one side can assert race to maximize its political advantage. We now have state courts striking down Florida’s map, and it’s only a matter of time before the Milligan ruling takes its toll on the Carolinas and Georgia as well. This devastating and unconstitutional opinion from some GOP-appointed judges could result in Democrats picking up five or six seats, which makes all the difference in this closely divided country.

The betrayal of conservatives on critical issues reflects a broader problem with the imbalance on the courts in terms of judicial nominees by party. Democrats bat .1000 on their nominees at the district, appellate, and Supreme Court levels. They never appoint a nominee who screws them on a key political issue. Republicans, however, consistently appoint judges who are striking down common-sense laws on drag shows.

Judge Thomas Parker, A Trump-appointed judge, already invalidated Tennessee’s anti-drag-show law in Shelby County, and now Judge Ronnie Greer, a George W. Bush appointee, expanded the injunction to the rest of the state. This is the same judge who mandated masks on schoolchildren in one of the most conservative parts of the country for longer than some blue states had mask mandates. Texas federal Judge David Hittner, a Reagan appointee, blocked a similar law against drag show nudity in Texas. Other judges have halted laws banning castration for minors, including Indiana district Judge Patrick Hanlon, a Trump appointee.

What is at least as important as judges not creating rights for castration? How about preserving rights and due process in the targeting of political opponents? When it comes to January 6 sentencing, some of the most unfair sentences are being meted out by Republican judges. Tim Kelly, a Trump appointee, sentenced the Proud Boys to 17-23 years in prison for nonviolent offenses. He sentenced Enrique Tarrio to 22 years in prison on a terror enhancement for some of his team members shaking a fence while he was miles away from the Capitol. Most of the other Trump judges on the D.C. district court have not been much better with J6 cases, even in recent months as more exculpatory evidence has come to light.

Then there is the border. Not only has the Biden administration facilitated the cartel invasion, but officials are actively blocking Texas from defending its own border. One of the more successful tactics of state border security is the marine barrier the Texas National Guard has placed in the Rio Grande River in busy parts of the southeast border. Last week, a Reagan-appointed judge ordered the state to move the barrier out of the water and onto the riverbank by Sept. 15. Acting like a politician conducting foreign affairs rather than a judge, Judge David Ezra accused Texas of harming safety, threatening relations with Mexico, and offering no “credible evidence that the buoy barrier as installed has significantly curtailed illegal immigration.”

Thankfully, we are not batting .000, so there are still some good judges, including Trump appointees on the Fifth Circuit Court of Appeals. Some of those judges reversed Judge Ezra’s injunction on the marine barrier. However, we have not been as successful in other circuits.

In other words, we have a major Republican judge problem. We can’t continue batting .500 while Democrats bat .1000. Over time, that imbalance creates a supermajority of leftist judges ruling against us on critical issues and a simple majority in almost all corners of the country. As of July, there were 91 Courts of Appeals judges appointed by Republicans and 81 appointed by Democrats, although Democrats have a majority on seven of the 13 federal appeals courts. The problem is that nearly all 81 Democrats are rock-ribbed leftists, but only half to two-thirds of the GOP appointees are even meaningfully conservative. At the district level, Democrats have an outright majority of 341 to 277, and that majority is growing every week Biden is in office.

The next Republican president needs to put staff in place to ensure that 100% of the lower court judges are known conservatives and not stealth candidates. Once you have control of the Senate, and Democrats will oppose the nominees anyway, you as may as well floor the gas pedal as Democrats do when they are in charge. Instead, too many of the Trump appointees who turned bad wound up getting near-universal Democrat support, which should be a red flag. For example, Indiana Judge Hanlon was confirmed by voice vote! Judge Parker, the Tennessee judge who said banning indecent exposure at drag shows violates the First Amendment, was confirmed 98-0.

In our political system, this should never happen. We need to make sure every district judge has a clear background that offers a GOP president confidence that he will be there for us on the big issues.

However, what is downright unforgivable is the oversight at the Supreme Court nominee level. Kavanaugh, while obviously better than a Democrat, was a completely wasted pick, and we will be paying for it for years to come – perhaps with control of Congress itself.